Comparison of Constructive Trust with the Remedy of Restitution under the Common Law - Case Study Example

common law recognizes legal rights.... Equitable rights are also enforceable in common law but they are enforceable in personam, i.... The commercial interest in property is derived generally by buying and selling of the property, such transaction is registered under the law thereby creates legal right over the property.... under the co-ownership, each tenant has the right to live on or share in the property during his or her lifetime....

If the British judges group the equitable jurisdiction as a restitutionary one, then the remedies must therefore be given by the common law courts.... “Lord Wright MR2 deplored the absence of an English work on restitution and noted that the American principles [of constructive trust] stated appear to be consistent with the large and unanalyzed mass of English cases.... ??1 This is far from being that categorical, especially when a slew of other factors make it quite confusing, especially when there are differences between the US and the English interpretation of the constructive trust law....

In cases such as this, Lord Diplock opined that court must satisfy itself on the evidence that it was 'the common intention of both spouses that the contributing wife should have a share in the beneficial interest and that her contributions were made upon this understanding.... nbsp; This, Lord Diplock stated should not operate to negate the common intention of both parties to acquire a matrimonial home for both parties in equal shares.... This paper 'Сommon Law Regarding Characteristics of Contributions" focuses on the fact that the imposition of a constructive trust is primarily a judicial function....

The general view taken by the court is that once the intention of a founder of a trust is determined, the courts will attempt to… This can be a complicated exercise as there are a number of circumstances and facts that guide the court and each case is determined by As a result there is no uniform set of rules capable of general application.... Therefore, ascertaining the validity and enforceability of a declaration of trust can be an onerous task.... When Ivor Fortune conveyed his seaside property to his brother Max with specific instructions that he hold the same in trust for Ivor's mistress Gloria, absolutely, the instructions constituted a declaration of trust....

n Springette v Defoe, Lord Justice Dillion was of the opinion that 'the common intention of the parties must, in my judgment, mean a shared intention communicated between them.... The author examines the law relating to constructive trust which necessarily requires an examination of fairness and justice between the parties involved.... nbsp;This is the guiding principle behind the imposition of a constructive trust.... 4An older case, Gissing v Gissing offers a comprehensive understanding of the nature of a constructive trust and the manner in which it will arise at law....

rdquo;2In this case, Gissing v Gissing offers a comprehensive understanding of the nature of constructive trust and the manner in which it will arise in equity.... Constructive trusts arise by operation of common law principles and are by and largely implied by circumstances and facts particularly in respect of the conduct, statements, and intention of the relevant parties where applicable.... "Circumstances in Which a constructive trust May Be Imposed upon a Trustee" paper focuses on a constructive trust that unlike an express trust is not an agreement between a settlor and a trustee....

These courts recognized some of the rights of women, which had been ignored by the common law.... the common law courts were partial to the doctrine of Femme couverte, which implied that married women's rights were subsumed into the rights of their husband, consequent to marriage.... constructive trust has retained its status of a substantive institution, in England.... lthough constructive trust cannot be restricted to disputes emanating from a fiduciary relationship, there is considerable confusion regarding the circumstances that produce it....

This work called "Land Law" describes Neuberger LJs approach to the relationship between the respective doctrines of constructive trust and proprietary estoppel by reference to decided cases and academic commentary.... nbsp;This is a legal process under the property law that ensures a property owner is estopped from denying the interest of another person in his property.... The promised person would use proprietary estoppel, or constructive trust in their suit to claim their rights....